Canon law, the law of the Catholic Church, is said to be the oldest continuing system of law in the western world. It is based on Roman law, and differs from our English common law in a number of respects. Both systems have similar rules of interpretation, relying on the proper meaning of words, but in the case of ambiguity they rely on different sources for clarification. The English system relies on court interpretations, while canon law relies on declarations by the legislature (the Holy See) and the opinion of canon law scholars about what the law means. The English system uses judicial precedent, but in canon law a judicial decision only binds the parties to it.

The Murphy Commission Inquiry into child sexual abuse in the Archdiocese of Dublin had considerable difficulty working out what canon law actually said about clergy sex abuse. Even the most competent canon lawyers were confused. Part of that problem arose from misleading statements by both Pope John Paul II and Cardinal Ratzinger and Archbishop Bertone about the repeal of Crimen Sollicitationis (see Bella Figuraand the Vaticanhttp://johnmenadue.com/blog/?p=951). But another source of confusion was the way changes to canon law are promulgated. The Murphy Commission said:

“There seems to have been a total absence of any straightforward, easily verifiable system for ascertaining which decrees or statements had the force of canon law and which had not, and what the effects of new canonical instruments, such as the code of 1983, or the 2001 procedural rules, had on previous instruments which had been treated as having the force of law…It is a basic feature of every coherent legal system that there is a firm, simple and unmistakeable procedure for the promulgation of a law. The absence of any such procedure within Church law, in the Commission’s view, makes that law difficult to access, and very difficult to implement and to monitor compliance.”

Both canon law and the English common law (less frequently) use “codes”, which is a way of containing all the law on one subject in one document. But when a State wants to change one of its codes, the changes are incorporated into the code. The Church, on the other hand, retains the code in its original form, but the Pope creates supplementary decrees. For example, the first Code of Canon Law was promulgated in 1917, and Crimen Sollicitationis became part of canon law in 1922 without becoming part of the code. The process can be analogous to the common law system where regulations, consistent with the Act, provide further detail, but sometimes the new canon law decree will provide for something totally inconsistent, such as Sacramentorum Sanctitatis Tutela of 2001, which changed the procedures for dealing with clergy sex abuse. Canon 1362§2 of the Code, for example, provides for a limitation period of 5 years for starting a canonical trial to dismiss a priest for child sex abuse. The 2001 decree extended that period to 10 years from the 18th birthday of the victim, and when Benedict XVI revised the procedures in 2010, the 10 years was extended to 20 years. But Canon 1362§2 of the Code still reads “5 years” from the date of the abuse.

Archbishop Coleridge told the Australian Royal Commission on 11 December 2013 that the Holy See is “neuralgic” about changing the canons, and prefers to change their “interpretation” rather than the canons themselves. That is fine, provided that the new “interpretation” fits in with the “proper meaning” of the words required by Canon 17 of the Code. But the new interpretation cannot be completely inconsistent. A period of “5 years” cannot be “interpreted” to mean “10 years” or even less, “20 years” without applying the Humpty Dumpty principle.

Another example of confusion relates to Canon 1341 that requires a bishop to use “pastoral” methods to “reform” a child sex abuser priest before commencing proceedings for dismissal, which was the canonical basis for sending such priests for treatment, and not dismissing them.

In his 2010 revised historical introduction to Sacramentorum Sanctitatis Tutela, Pope Benedict XVI criticized the “pastoral attitude” of “canonical scholars” and “diocesan or religious personnel”, who took the view that “the bishop was expected to ‘heal’ rather than ‘punish’”, ignoring the fact that the Holy See had always interpreted Canon 1341 in precisely that way, at least until then. If the revised historical introduction was meant to be a new “interpretation” of Canon 1341, (and even that is not clear), the effect is to exclude child sex abuse cases from the requirement to “reform the offender”. This was an extremely clumsy and confusing way to do it, because the plain words of Canon 1341 and the new “interpretation” contradict each other. That is unacceptable in any coherent legal system. Benedict has entrenched and extended the confusion criticized by the Murphy Commission. This confusion is obvious in the way the Holy See, even as late as 2011, dealt with the Gannon case in Australia and those from the Archdiocese of Milwaukee (see: “New Vatican Committee on Sexual Abuse and ‘zero tolerance’ of Pope Benedict”: http://johnmenadue.com/blog/?p=966).

Popes John Paul II and Benedict XVI turned the oldest continuing legal system in the Western world into incoherent Humpty Dumpty law, with words meaning contradictory things at the whim of those who have the power. If Pope Francis is serious about reforming the governance of the Church, one of the first things he should do is to give it a decent legal system.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.